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Republic of the Philippines

OFFICE OF THE PRESIDENT


NATIONAL COMMISSION ON INDIGENOUS PEOPLES
Quezon City

NCIP Administrative Order


No. 3, Series of 2002

REVISED GUIDELINES FOR THE ISSUANCE OF CERTIFICATION


PRECONDITION AND THE FREE AND PRIOR INFORMED CONSENT IN
CONNECTION WITH APPLICATIONS FOR LICENSE, PERMIT, AGREEMENT OR
CONCESSION TO IMPLEMENT AND OR OPERATE PROGRAMS/
PROJECTS/PLANS/BUSINESS OR INVESTMENTS INCLUDING OTHER SIMILAR
OR ANALOGOUS ACTIVITIES OR UNDERTAKING THAT DO NOT INVOLVE
ISSUANCE OF LICENSE, PERMIT, AGREEMENT OR CONCESSION BUT
REQUIRES THE FREE AND PRIOR INFORMED CONSENT OF ICC/IP
COMMUNITY IN ANCESTRAL DOMAIN AREAS IN ACCORDANCE WITH R.A.
8371

Pursuant to Sections 44 (m), 46(a), 57, 58, 59, and 7 (b) and (c) of R.A. 8371,
otherwise known as the Indigenous Peoples Rights Act of 1997, and other related
provisions, the following guidelines are hereby promulgated revising NCIP
Administrative Order No. 03, Series of 1998, as follows:

I. PRELIMINARY PROVISIONS

Section 1. Title. These rules shall be known as the Revised Guidelines for FPIC and
issuance of Certificate Precondition.

Section 2. Objective. These guidelines aim to:

a) Ensure community participation in the decision making process in obtaining the


Free and Prior Informed Consent of concerned ICCs/IPs;

b) Protect the primary rights of ICCs/IPs in the implementation of development


projects, programs, activities and other business or profit oriented investments
within their ancestral domains to ensure their economic, social and cultural well-
being;

c) Provide the procedure and the standards in the conduct of field-based


investigation, charges of fees, compensation for damages and imposition of
administrative sanctions for intentional commission of prohibited acts as
hereinafter provided; and

d) When FPIC is given, ensure just partnership and equity in the environmental
management, land use, development, utilization and exploitation of resources
within ancestral domains, between and among the concerned ICC/IP community
and the prospective investor, government agency, LGUs, NGOs and other
entities desiring to collaborate in such undertaking.

Section 3. Declaration of Policy. Inroads into the ancestral domains of ICCs/IPs


resulted more often to their disenfranchisement and marginalization. Policies, plans,

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development programs and projects which may have been prejudicial to the rights
and interests of ICCs/IPs, and certain harmful or detrimental undertakings or
activities have been adopted and implemented within ancestral domains without the
consent of concerned ICC/IP communities. Free and prior informed consent, as an
instrument of empowerment, enables ICCs/IPs to exercise their right to self-
determination. In order to uphold the clear intent and purpose of the law in requiring
the precondition of free and prior informed consent of the ICCs/IPs in connection with
applications for lease, license, permit, agreement and/or concession to implement
and/or operate programs/projects/activities in ancestral domains, it is the policy of the
NCIP that the process of securing the FPIC of ICCs/IPs and the corresponding
issuance of Certificate Precondition shall be had with utmost regard to the overriding
right of the ICC/IP to the management, development, use and utilization of their own
land and resources within their ancestral domains and lands as recognized by the
State. It shall institute and establish protective mechanisms to enforce and
guarantee the realization of that bundle of rights, within the framework of national
unity and development. Corollary to this, the NCIP shall exercise its visitorial powers
and may take appropriate action to safeguard the rights of the ICCs/IPs under
resource utilization contracts. All concerned departments and other government
agencies are therefore strictly enjoined not to issue, renew, or grant any concession,
license or lease, or enter into any production-sharing agreement, without the
certification precondition issued by the NCIP or the concomitant compliance with the
requirement of free, prior and informed consent obtained from the ICC/IP community.

Section 4. Operating Principles. In the implementation of these guidelines, the


following principles shall be observed:

a) Consensus and Decision-Making Process. The ICC/IPs shall participate in the


decision-making processes primarily through their indigenous socio-political
structures and they shall likewise affirm the decisions of their representations.

b) Peace-Building. In resolving conflicts or disputes affecting or pertaining to


indigenous peoples, any determination or decision thereon shall be reached
through dialogue and consensus.

c) Primacy of Cultural Integrity. Within ancestral domain/lands, the holistic and


integrated adherence of indigenous peoples to their respective customs, beliefs,
traditions, indigenous knowledge systems and practices, and the assertion of
their character and identity as peoples shall assume an important consideration
in the decision-making processes required for the issuance of the certification as
a pre-condition to applications for lease, license, permit, agreement and/or
concession to implement or operate programs/projects/activities in ancestral
domains to ensure that the culture and traditions of the concerned ICC/IPs are
applied or utilized in the process.

d) Right to Manage Own Land and Resources as Basis. The right of the
ICCs/IPs to manage their own land and resources within their ancestral domains
and lands as embodied in their respective plans for the sustainable development
and protection of ancestral domains shall be the basis for their decisions to give
or not give consent to proposed programs/projects/activities in ancestral domains
and/or affecting their rights as a community and as people.

e) Primacy of Customary Law. The conduct of field-based investigation and the


process of securing the free and prior informed consent shall take into
consideration the primacy of customary processes of consensus building.

f) Priority in the Development of the Ancestral Domain. The ICC/IPs are given
utmost priority in the management and pursuit of development
programs/projects/activities in ancestral domains. In all instances, the ICC/IPs
shall have priority in the development, extraction, utilization and exploitation of
natural resources within ancestral domains.

g) Sustainable Development and Protection. The FPIC, whenever given, shall not
have the effect of undermining the requisite of sustainable development and
protection of ancestral domains, to ensure the welfare of not only the present but
as well as that of the future generations.

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h) Transparency and Clarity. The process of conducting the field-based
investigation, consensus-building and the issuance of the certification
precondition (CP) and the free and prior informed consent (FPIC) shall be
characterized by transparency not only on the part of the Commission but also on
the part of the ICC/IP concerned. It is required therefore, that all issuances,
orders, decisions of the Commission relative thereto must be made known to all
parties concerned.

i) Inter-agency/LGUs and NGO Collaboration and Community Support. The


collaboration of other government agencies, local government units, and the
involvement and participation of the ICCs/IPs in the process shall be greatly
encouraged and vigorously pursued. NGOs who have actively assisted a
particular ICC/IP in the processing of their claim is given preference over any
other NGOs desiring to collaborate, subject to the written consent of the ICC/IP
through their recognized elders/leaders for this particular undertaking.

Section 5. Definition of Terms. The terms defined in the Indigenous Peoples Rights
Act and its Implementing Rules and Regulations are hereby adopted, including the
terms defined herein below:

a. ADSDPP – refers to the Ancestral Domain Sustainable Development Protection


Plan drawn and adopted by the ICC/IP community to govern the exercise of their
sustainable traditional resource use rights within their ancestral domain areas,
their framework of development and value systems.

b. Customary Laws – refers to a body of written and/or unwritten rules, usage,


customs and practices traditionally and continually recognized, accepted and
observed by respective ICC/IPs. Customs and practices refer to norms of
conduct and patterns of relationship or usage of a community over time that is
accepted and binding on all members.

c. Certification Precondition - refers to the certification issued by the NCIP that


the site covered and affected by any application for concession, license or
lease, or production-sharing agreement does not overlap with any ancestral
domain area of any indigenous cultural community or indigenous peoples, or if
the site is found to be within an ancestral domain area, that the required FPIC
was properly obtained from the ICC/IP community concerned in accordance with
the provisions of these guidelines.

d. Free and Prior Informed Consent - this is the consensus of all members of
the ICC/IPs which is determined in accordance with their respective customary
laws and practices that is free from any external manipulation, interference and
coercion and obtained after fully disclosing the intent and scope of the
program/project/activity, in a language and process understandable to the
community. The Free and Prior Informed Consent is given by the concerned
ICCs/IPs upon the signing of the Memorandum of Agreement containing the
conditions/requirements, benefits as well as penalties of agreeing parties as
basis for the consent.

e. Field-based Investigation – refers to the on-site inspection and investigation to


ascertain the presence or absence of ICC/IPs and/or ancestral domains in the
areas covered by application for certification precondition to any concession,
license or lease, or enter into any production-sharing agreement.

f. Indigenous Cultural Communities/ Indigenous Peoples (ICCs/IPs) – refer to


a group of people or homogenous societies identified by self ascription and
ascription by others, who have continuously lived as organized community on
communally bounded and defined territory, and who have, under claims of
ownership since time immemorial, occupied, possessed, and utilized such
territories, sharing common bonds of language, customs, traditions and other
distinctive cultural traits, or who have, through resistance to political, social, and
cultural inroads of colonization, non-indigenous religions and cultures or the
establishment of present state boundaries, who retain some or all of their own

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social, economic, cultural and political institutions, but who may have been
displaced from their traditional domains or who may have resettled outside their
ancestral domains.

g. Indigenous Knowledge Systems and Practices – refer to the systems,


institutions, mechanisms, technologies comprising a unique body of knowledge
evolved through time that embody patterns of relationships between and among
peoples, their lands and their environment, including such spheres of
relationships which may include social, political, cultural, economic, and religious
that are direct outcomes of the indigenous peoples’ response to certain needs
consisting of adaptive mechanisms which have allowed indigenous peoples to
survive and thrive within their given socio-cultural and biophysical conditions.

h. Elders – are individuals IPs or members of ICCs with a certain degree of


esteem, dignity, respect, and integrity who could be relied upon as sources of
information, act as counsels of community concerns, and knowledgeable and
practicing customs and traditions.

i. Self-Determination/Governance. The exercise of the right of ICC/IPs to pursue


their economic, social, and cultural development; promote and protect the
integrity of their values, practices, indigenous knowledge and institutions;
determine, use and control their own organizational and community leadership
systems, institutions, relationships, patterns and processes for decision-making
and participation.

j. Sustainable Traditional Resource Use Rights – means the right of ICCs/IPs to


use, manage, protect and conserve; a) land, air, water and mineral, b) plants,
animals and other organisms, c) collecting, fishing and hunting grounds, d)
sacred sites, and e) all areas of economic, ceremonial and aesthetic value in
accordance with their indigenous knowledge, beliefs, systems and practices.

Section 6. Coverage. The ICCs/IPs shall, within their communities, determine for
themselves, policies, development programs, projects and plans to meet their
identified priority needs and concerns. The ICCs/IPs shall have the right to accept or
reject a certain development, activity or undertaking in their particular communities.
The acceptance or rejection of proposed policy, program, project or plan shall be
assessed in accordance with the following IPs development framework and value
systems for the conservation and protection of:

a) Ancestral domains/lands as the ICCs/IPs fundamental source of life:


b) Traditional support system of kinship, friendship, neighborhood clusters,
tribal and inter-tribal relations rooted in cooperation, sharing and caring;
c) Sustainable and traditional agricultural cycles, community life, village
economy and livelihood activities such as swidden farming, communal
forests, hunting grounds, watersheds, irrigation systems and other
indigenous management systems and practices; and
d) Houses, properties, sacred and burial grounds.

These guidelines shall cover the following programs/ projects/activities:

a) Exploration, development, exploitation and utilization of natural resources


for commercial purposes within ancestral domains/lands, by IPs and non-
IPs alike;

b) Research on indigenous systems, knowledge and practices related to


agriculture, forestry, watershed and resource management systems and
technologies, medical and scientific concerns, bio-diversity and bio-
processing, including the gathering of biological and genetic resources;

c) Archaeological explorations, diggings, excavations and access to religious


and cultural sites;

d) Activities that would impinge on their spiritual and religious traditions,


customs and ceremonies, including ceremonial objects;

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e) Programs, projects and activities that would lead to the displacement
and/or relocation of indigenous peoples;

f) Entry of migrants and other entities who intend to do business or engage


in development activities inside the ancestral domains;

g) Management of protected and environmentally critical areas, and other


joint undertakings within ancestral domains;

h) Implementation of government reforestation and infrastructure projects;

i) Activities that may adversely affect the airspace, bodies of water and
lands of the ancestral domains;

j) Policies affecting the general welfare and the rights of ICCs/IPs;

k) Occupation of military or paramilitary forces or establishment of temporary


or permanent military facilities within the domains; Military operations
traversing ancestral domain areas may be allowed without the required
FPIC only when the same is made in connection with hot pursuit
operations and the duration is not to exceed the period of seven (7) days.

l) Other activities or undertaking similar or analogous to the foregoing;

II. PROCEDURE AND PROCESS REQUIREMENTS FOR THE


ISSUANCE OF CERTIFICATION PRECONDITION
AND THE FREE AND PRIOR INFORMED CONSENT

Section 7. Endorsement of Concerned Agency. The application for lease, license,


permit, agreement and/or concession to implement or operate programs/ projects/
activities in ancestral domains is directly filed by the proponent to the concerned
government agency for compliance of the agency’s applicable regulatory
requirements, who in turn, endorses it to NCIP for certification precondition as
required by the IPRA. The endorsement is to be addressed to the NCIP Chairperson
through the Ancestral Domains Office. Request for certification precondition coming
directly from the proponents will not be acted upon. If the undertaking is proposed to
be had by the ICC/IP community themselves, NCIP shall only verify if the same is in
accordance with their own ADSDPP. If the undertaking is proposed to be had in their
own ancestral domain area by an IP or group of IPs who are members thereof, NCIP
shall verify if the same is in accordance with the community’s own ADSDPP and
compliance with the requirement of FPIC. For verification purposes, NCIP field office
shall always be informed by the proponent IP or group of IPs of any undertaking that
requires the FPIC of the ICC/IP community to which they are members as provided in
these guidelines. In the absence of such ADSDPP, the NCIP shall assist the
ICCs/IPs in the formulation of the required ADSDPP. Collaboration of accredited
NGOs in this undertaking will be recognized. In the case of an IP or group of IP
proponents who are members of the same community where the undertaking is
proposed to be had, NCIP shall make sure that the proponent/s is or are not made to
appear as such under any scheme or arrangement by any person or entity who has
the intention of circumventing the law requirement on certification precondition and
the FPIC. If the undertaking is proposed to be had by an IP individual or a group of
IPs who is or who are not members of the ICC/IP community, the proponent/s shall
have to file it before the appropriate government agency regulating the conduct of the
proposed undertaking for compliance of the agency’s applicable regulatory
requirements, and upon endorsement by the concerned agency to the NCIP, the
application shall undergo the required activities for certification precondition.

Section 8. Requirements from the Endorsing Agency. The endorsement letter


should enclose the report on the nature and extent of the proposal and the technical
map of the applied site including the outlying impact or affected areas.

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Section 9. Conduct of Field-based Investigation. The field-based investigation is
the first step in the process required for the issuance of certification precondition. It is
done to ascertain whether or not the site applied for falls within, contains the whole,
or overlaps a portion of an ancestral domain area, whose boundaries on the ground
may have already been predetermined and secured by an existing recognized
tenurial instrument, or in its absence, is recognized as traditionally belonging to a
particular ICC/IP as part of their ancestral domain as defined under Section 3 (a) of
the IPRA. For this purpose, it is assumed that the site applied for issuance of
certificate precondition falls within, contains the whole, or overlaps a portion of an
ancestral domain of ICCs/IPs until proven otherwise. It is the duty of the team
conducting the field-based investigation to locate the IP community nearest to the
site applied for the issuance of certification precondition to determine whether or not
the site falls within, contains the whole, or overlaps a portion of an ancestral domain
of ICCs/IPs. The detailed steps in the conduct of the field-based investigation are as
follows:

a) Within five (5) working days from receipt of the endorsement from the endorsing
agency, the Chairman, through ADO directs the concerned Regional Director to
constitute the field-based investigation (FBI) team and designates a team leader.
Members of the FBI team shall not be less than five (5), two shall come from the
Regional Office and the other three shall come from the concerned Provincial
Office or the Community Service Center; The FBI Team shall be issued with a
Work Order by the Regional Director for the purpose of conducting the field-
based investigation;

b) The FBI team first conducts assessment of secondary sources of data before they
proceed to inspect the actual project site and the outlying impact areas within
fifteen working days from receipt of the Work Order;

c) Within Fifteen (15) working days after the conduct of the field-based investigation,
the FBI team prepares report with recommendation to the Regional Director for
assessment and proper action;

d) Within Ten (10) working days from receipt of report from the FBI, the Regional
Director shall forward the report with appropriate recommendations to the ADO;

e) The ADO, after proper evaluation of the reports and endorsement of the
concerned Regional Director shall cause the issuance of the Certification
Precondition. However, ADO shall not act on recommendations irregularly
evaluated and endorsed by the Regional Director;

f) Within seven (7) working days from receipt of the report/endorsement, the ADO
Director issues the certification precondition or appropriate document to the
requesting agency.

Section 10. Contents of the Field-Based Investigation and Assessment Report.


The field-based investigation and assessment report shall reflect both the
assessment of relevant secondary data and the results of the actual site inspection.
The report duly signed by the FBI team leader and properly endorsed by the
Regional Director shall contain the following minimum information:

a) Date of report;
b) Assessment of relevant secondary data, indicating source of data;
c) Dates of field-based investigation;
d) Location or site of field-based investigation;
e) Names and designation of authorized FBI Team;
f) Specific objective or purpose of the field-based investigation;
g) Specific names of places actually visited;
h) Names of persons interviewed, indicating their positions in the community;
i) Statement of actual observations and/or comments gathered;
j) If the report indicates an overlap to an ancestral domain, the estimated population
of indigenous peoples in the area should be indicated. It shall also include
preliminary documentation of the existing indigenous consensus-
building/decision-making processes, including the identification of the authentic

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tribal/community leaders, and to determine initial estimate of ICC/IP population in
the affected areas;
k) Assessment of observations and/or comments;
l) If FPIC is found to be a requisite, estimate of cost to be deposited by the
proponent as fees to answer for the expenses needed in conducting the required
FPIC proceedings;
m) Recommended action and endorsement to the ADO.

Section 11. Attachments to the Field-Based Investigation and Assessment


Report. Pertinent documents showing proof of the field-based investigation and
assessment report shall include, but not limited to the following:

a) Endorsement letter of appropriate agency and the required attachments;


b) Copy of secondary data, if applicable, such as the certification from the
concerned Provincial/Municipal Statistics Office on the ethnic grouping of the
population within the applied and impact area;
c) Approved itinerary of travel;
d) Certificate of appearance from the LGU, Barangay Captain, recognized
Elders/Leaders of the ICCs/ IPs whenever applicable;
e) Certification from the recognized ICC/IP leadership as determined under Section
14 (b) of this guidelines, in the concerned province or municipality on the
existence, or otherwise, of ancestral domains/lands in the area subject to
investigation.

Section 12. Submission of the Applicant’s Operation Plan. If the field-based


investigation report requires the free and prior informed consent (FPIC) of affected
ICC/IPs, the concerned Regional Director shall notify, in writing, the applicant to
submit the operation plan of the project as provided in their proposal within fifteen
(15) working days from receipt of the FBI team recommendation. The concerned
Director notifies directly the proponent in writing to submit the project operation action
plan. A copy of the notice is furnished to the requesting agency and the ADO; The
notice shall also contain information that the applicant may now proceed with the
conduct of the FPIC.

Section 13. Payment and deposit of Fees for Applications for Certification
Precondition and the Certification for FPIC; Basis of Determining the Amount
of Fee. The FBI Fee and FPIC Fee shall be paid or deposited in the manner
provided as follows:

a) The applicant or proponent is required to pay the fixed amount of


Five Thousand (P 5,000.00) pesos as Field-based Investigation
Fee for the conduct of field-based investigation to be paid at NCIP
regional office concerned. The deposit shall be properly
documented;

b) If the result of the field-based investigation reveals the necessity of


securing the FPIC of the community concerned, the applicant or
proponent is required to deposit before the concerned NCIP
regional office the FPIC Fee in the amount as estimated by the
said office and as contained in the FBI report submitted by the
region. The NCIP regional office shall make the estimate on the
basis of the data gathered during the conduct of the field-based
investigation, taking into account the cost of transportation, food
allowance and other necessary expenditures needed for the
conduct of FPIC proceedings in the community viz-a-viz the
number of days and the number of participants;

c) Remaining unspent amount collected as FPIC Fee shall be duly


accounted for and shall be returned to the applicant or proponent
at the end of the FPIC proceedings;

d) Collection of FPIC Fee on cost estimates made without sufficient


basis shall be considered as an act of illegal exaction of money
and shall be proceeded in accordance with law.

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Section 14. Mandatory Activities in the Conduct of FPIC Process. The ADO
through the Regional Office shall ensure that the FPIC process include among
others, the following:

a) Notices. Posting of Notices in conspicuous places in and around the area of the
concerned ICC/IP community by NCIP that a preliminary consultative meeting will
be had. Said notices shall indicate the date and venue of the meeting, the
objectives and the nature and scope of the project and identity of the project
proponent. Aside from the posting of notices, personal service of notices by NCIP
to the concerned Council of Elders/Leaders is required, which must be served at
least five (5) days before the intended date of the preliminary consultative
meeting and that their presence is required.

b) Validation of the List of Elders/Leaders. Aside from the list of elders/leaders as


appearing in the records of NCIP representing a particular ICC/IP community, the
FBI Team shall conduct a random listing of elders /leaders from the community
as identified by name by the members thereof. NCIP shall facilitate the
convention of these elders/leaders for the purpose of validating the authenticity of
the names of elders/leaders as appearing in the list. In that convention, the
participants will be asked to identify who among themselves are the recognized
leaders of the community and who are not. It is a qualification process in which
those who presented themselves as leaders/elders will be discerned by the rest
of them in accordance with their customary laws. The purpose is to secure
genuine representations for the community in the negotiations that will be had
between the proponent and the community. It is a process in which each of them
will present himself before the rest for confirmation as a recognized elder/leader
of the community.

c) Preliminary Consultative Meeting. Within fifteen working (15) days from the
submission of the applicant’s operation plan, a preliminary consultative meeting
shall be conducted within the host community. The participants to the preliminary
consultative meeting are: the identified council of elders or leaders, the
representatives from the proponent, the NCIP, the representatives from
collaborating NGOs and the civil society operating in the concerned area. The
proponent will be given sufficient time in the presentation and clarification of their
project proposal in the said preliminary consultative meeting. The Operation Plan
and the scope and extent of the proposal shall then be presented to the
elders/leaders by the proponent for understanding, and shall give them the
needed information supporting their proposal, including but not limited to: the
cost and benefits of the proposal to the ICC/IP and their ancestral domains;
presentation of perceived disadvantages or adverse effects to the community and
the measures adopted by the proponent to mitigate these; and, a statement of
commitment to post performance bond to answer for consequential damages to
the community. In the discussions to follow, the other representatives will be
given their turn in presenting their views to the proposal. The oppositors to the
proposal, if there are any, shall likewise be given equal time in the said meeting in
the presentation of the basis and reasons of their opposition thereto for the
appreciation of the council of elders/leaders. NCIP’s presence in the meeting is
mandatory for the purpose of facilitating the conduct of the meeting and to
provide the participants education and information on IPRA particularly on the
FPIC and the rights and privileges of the ICCs/IPs. The mechanics of the meeting
shall be set by the NCIP representative after due consultation from all parties
concerned. The council of elders/leaders shall decide whether another meeting is
necessary to complete the process.

d) Consensus Building. Within a period of fifteen (15) days after the termination of
the last and final preliminary consultative meeting/s, the Elders/Leaders shall
complete the conduct of their own consultation meetings with their members in
the community employing their own traditional consensus building processes in
order to further discern the merits and demerits of the proposal as presented in
the preliminary consultative meeting. During this period, nobody from the
participants in the preliminary consultative meeting, except the NCIP
representative, will be allowed to stay in the community. NCIP’s role in the
community for the duration of the period is to document the community

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proceedings that is being had. At the end of this process, the elders/leaders may,
at their option, call again for another meeting before the conduct of the required
community assembly is finally had, like when there are negotiation points that
they wanted to present that requires further discussions with the applicant.

e) Community Assembly. Within fifteen (15) days after the lapse of the period
provided for community consensus building conducted by the ICC/IP
Elders/Leaders, NCIP shall cause the conduct of Assembly of all the members of
the community as represented by the household heads. It is on this occasion that
the decision of the ICC/IP with respect to the proposal will be made known. NCIP
will determine by raising of hands the number of those who would vote for or
against the proposal. The leaders or elders will be required to explain the vote
had, and if the decision is for the proposal, the terms and conditions of the giving
of their consent thereto. The decision as explained shall be properly
documented, and the terms and conditions approving the proposal shall be
translated in the form of a MOA to be signed by both parties with NCIP,
represented by the Chairman, signing as the third party. The person to sign
representing the community shall be chosen by the council of elders/leaders
among themselves, duly authorized by them. A translation of the MOA to the
dialect of the ICC/IP shall then be prepared

Section 15. Issuance of the Certificate of Free and Prior Informed Consent. The
concerned ICC/IP community shall finally issue the free and prior informed consent
through their authorized representative(s) upon signing of the Memorandum of
Agreement. Likewise, this shall be written in English or Tagalog and in the
appropriate IP language. Signatures or thumb marks must be affixed on each page
of the document signifying consent or rejection. In case of rejection, the ICC/IPs
shall state in the document of rejection whether or not they shall entertain alternative
proposals of similar nature. Any alternative proposal shall be subject to another FPIC
of the IPs/ICCs in accordance with the foregoing procedures and requirements.
However, no FPIC process shall be repeated once a particular proposal has already
been rejected by the ICC/IPs.

Section 16. Who Shall Give their Free and Prior Informed Consent. The scope
of the ICCs/IPs whose free and prior informed consent is required shall depend upon
the impact area of the proposed policy, program, projects, plans, activity or
undertaking, such that:

e) When the policy, program, project, plan, activity or undertaking


affects only a particular community within the ancestral domain,
only such community shall give their FPIC. But the Council of
Elders/Leaders representing the whole ancestral domain shall be
the one to determine whether or not a given policy, program,
projects, plans, activity or undertaking affects the whole of the
ancestral domain or only a portion of it; The determination of the
scope by the council, may be challenged by way of a petition filed
before the Regional Hearing Officer. The Petition must be duly
signed by a majority of the members of the whole ancestral
domain area with the allegation that the Council have not
reconsidered their determination of the scope despite their
opposition thereto;

f) When the policy, program, project, plan, activity or undertaking


affects the entire ancestral domain, the consent of the concerned
ICCs/IPs within the ancestral domain, the consent of the
concerned ICCs/IPs within the ancestral domain shall be secured;
and

g) When the policy, program, project, plan, activity or undertaking


affects a whole range of territories covering two or more ancestral
domains, the consent of all affected ICCs/IPs communities shall
be secured.

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Section 17. Non-transferability of Free and Prior Informed Consent. The FPIC
for a particular proposal shall not be transferable to any other party, except in case of
merger, reorganization, transfer of rights, acquisition by another entity, or joint
venture. Provided, that there will be no changes in the original plan and the same
shall not prejudice the interest, rights and welfare of the concerned IP community.

Section 18. Endorsement of the FPIC Certification to the Ancestral Domains


Office. The Regional Director shall endorse the FPIC Certification to the Ancestral
Domains Office for proper evaluation and subsequent issuance of certification
precondition. The endorsement shall enclose copies of the following:

a) Notices of every meeting for purposes of securing the FPIC written in English or
Pilipino and in the IP language as authorized by the community elders/leaders;
b) Minutes of all meetings and proceedings where the proponent had presented,
submitted and discussed all the necessary information on the proposed program /
project, policy or plan to be conducted/implemented in a process and language
understood by the ICC/IPs concerned. The minutes must be written in English or
Pilipino and in the appropriate IP language, as validated by those who attended
the meeting or assembly;
c) Minutes of consultation meetings with all members of the ICC/IP communities
affected by the request for certification precondition;
d) Minutes of negotiation meetings on the terms and conditions for granting the
FPIC;
e) Minutes of the validation of the decisions of the authorized ICC/IP negotiators by
all members concerned;
f) Sketch map of project impact area;
g) Documentation of customary practice on consensus building; and
h) Census of population of the host ICC/IP community.

Section 19. Process Requirement for the Issuance of Certification


Precondition. If the applied and impact areas are non-ICC/IP area and/or does not
overlap with an ancestral domain based on the field-based investigation, the
appropriate certification precondition is issued immediately by the Commission
through the concerned Regional Director where the area is situated. On the other
hand, if the field-based investigation report indicates the presence of ICC/IPs in the
applied and impact areas or an overlap to an ancestral domain/land, the free and
prior informed consent through the customary consensus-building process of the
concerned ICC/IPs is required before the issuance of the certification precondition.

Section 20. Issuance of the Certification Precondition. The appropriate


certification precondition shall be issued within Fifteen (15) working days from receipt
of the pertinent recommendation or endorsement of the concerned Director. ADO
shall endorse it for approval of the Commission. Attached in the issuance is the MOA
and FPIC certification by the concerned host ICC/IP.

Section 21. Non-Consent by the concerned ICC/IP. The concerned ICC/IPs, in


case of non-consent or unfavorable decision, shall state in writing the specific
reasons for non-consent. The non-consent in writing shall be signed/thumb marked
by the authorized leaders/elders in every page of the paper and submit it to the
Regional Director. In turn, shall submit it to the ADO within Five (5) working days
from the submission of the written non-consent. The ADO, within Five (5) working
days from receipt of the non-consent shall prepare the report and endorsement of
the Order of Denial to the Commission. Within Ten (10) working days thereof, the
Commission shall issue appropriate action to be transmitted to the applicant and the
endorsing agency through the ADO.

III. MEMORANDUM OF AGREEMENT

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Section 22. The Memorandum of Agreement. If the result of the FPIC process is
favorable to the proposal, the agreements and conditions discussed in the said
process are embodied in a Memorandum of Agreement (MOA) between/among the
ICC/IPs, the proponent and the NCIP and any other party equally involved and
witnessed by their respective members. In case of change of proponent personalities
in the future, the terms and conditions of the MOA shall bind the new proponent
without necessarily executing another MOA. The Agreement must be written in
English or Tagalog and in the appropriate IP language. The parties executing the
MOA shall acknowledge the terms, contents and due execution thereof before a
notary public or persons authorized by law to administer oath.

Section 23. Contents of the Memorandum of Agreement. The MOA shall


stipulate among others, the following:

a) The detailed premises of the agreement;


b) All parties involved;
c) Inclusive dates/duration of agreement;
d) The benefits to be derived by the host ICC/IPs indicating the type of benefits,
specific target beneficiaries as to sector and number, the period covered, and
other pertinent information that could guide the future monitoring and evaluation
of the MOA;
e) Use of all funds to be received by the host ICC/IP communities, ensuring that a
portion of such funds shall be allocated for development projects, social services
and/or infrastructures in accordance with their development framework;
f) Detailed measures to protect IP rights and value systems;
g) Detailed measures to conserve/protect any affected portion of the ancestral
domain critical for watersheds, mangroves, wildlife sanctuaries, forest cover, and
the like;
h) Responsibilities of the proponent as well as the host IP community;
i) The MOA monitoring and evaluation schemes; and
j) Penalties for non-compliance or violation of the terms and conditions.

Section 24. Signatories to the Memorandum of Agreement. The signatories of the


MOA shall be:

a) For the ICC/IP community, all authorized community elders / traditional leaders
identified and recognized by the community
b) For corporations, partnerships or single proprietorship entities, the authorized
officers, representatives, or partners as per Board resolution; and
c) For the NCIP as third party, the Regional Director by authority of the Commission.

Section 25. Hearing of Complaints on the Memorandum of Agreement. In case


of any complaint on the MOA implementation, this shall be filed at the NCIP Regional
Hearing Office for appropriate action. The decision of the Regional Hearing Officer
maybe appealed to the Commission en Banc. The decision of the Commission en
Banc is appealable to the Court of Appeals. The NCIP Regional Hearing Office shall
acquire jurisdiction over such complaints only upon written certification from the
Council of Elders/Leaders that the same has not been resolved in accordance with
their traditional conflict resolution institutions applying their customary laws and
practices.

Section 26. Applicability of Customary Laws and Imposition of Sanction/s for


Violation of the Terms of the MOA. Any person/party who willfully violates or fails
to comply with his duty or obligation under the provisions of the Memorandum of
Agreement may be proceeded in accordance with the customary laws and practices
of the host or concerned ICC/IPs and sanctions may be imposed in accordance
therewith, provided it is not cruel and humanly degrading. Its applicability shall be
without prejudice to the Commission’s exercise of its visitorial and injunction powers.
Such customary law or practice shall form part of the documents supporting the
Memorandum of Agreement between the concerned parties.

Section 27. Action of the Commission. The action of the Commission on the
petition shall be embodied in a resolution, a copy of which shall be forwarded to the
Ancestral Domains Office.

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IV. ROLE/RESPONSIBILITIES OF ALL CONCERNED PARTIES
CONCERNED IN THE PROCESSES OF THE CERTIFICATION
PRECONDITION

Section 28. Role/Responsibilities of the Proponent. At the minimum, the


proponent is obliged to comply with the following to ensure the success of the field
based investigation and/or the consensus building process:

a) Prepares and submits proposal of the project;

b) Presents and submits in writing to the IP community and the NCIP in a language
understandable to the concerned community, the details of all the possible
impact of the proposed policy, program, project or activity upon the ecological,
economic, social-cultural aspect of the community as a whole. Such document
shall clearly indicate how adverse impacts can be avoided or mitigated

c) Payment of the Field-based Investigation fee for the conduct of the Field-based
investigation. If the result of the FBI requires the need to secure the FPIC of the
community, submit the required Operation Plan and deposit of the FPIC fee to
answer the expenses for the conduct of the FPIC process in the amount as
determined in the manner provided in these guidelines;

Section 29. Role/Responsibilities of the ICC/IPs concerned. On its part, the


affected ICCs/IPs shall comply with the following to ensure the success of the
consensus building process:

a) Determine the customary practice of consensus building to be followed in the


conduct of FPIC process. This shall be made in writing in their own dialect and
shall be translated into the major dialect of the community and shall be ratified by
the all heads of the families and clans or their authorized representatives;

b) Identify in writing their Elders/Leaders or representatives of their family or clan


who can sign on their behalf;

c) The Council of Elders/Leaders shall be registered with the NCIP for record and
recognition purposes. In no case shall an FPIC signatories be represented by
heads of coalitions or organizations who lives outside of the concerned ICC;

d) Keeps the original copy of the MOA

Section 30. Role/ Responsibilities of the NCIP. The different offices of the NCIP at
various levels shall be responsible as follows:

a) The Regional Office

1. Collects and issues official receipt to the proponent for the inspection fee for
the conduct of FBI;
2. Conducts the census or genealogical survey of the ICCc/IPs concerned;
3. Documents the customary practices on consensus building among the
affected ICCs/IPs;
4. Evaluates and coordinates the FPIC Action Plan;
5. Facilitate registration of the authentic IPOs, Elders,Leaders and
representatives of the families and clan;
6. Facilitate the execution of the MOA and endorse to the Commission, through
the Director of the Legal Affairs Office of the NCIP, for review and authority
to sign as third party;
7. Monitors the compliance of the terms and conditions stipulated in the MOA;
and;
8. Keeps certified true copy of the MOA.

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b) The ADO

1. Evaluates and validates, if necessary, the FBI and the conduct of the FPIC
process;
2. Monitors the FBI/FPIC process;
3. Keeps duplicate copy of the MOA.

V. PROHIBITED ACTS AND SANCTIONS

Section 31. Prohibited Acts. After the filing of the application and during the
period that the application is pending, any of the following acts or omissions are
hereby declared either acts prejudicial to the interest of the IP community in the
attainment of their consent or is an act in circumvention of the intent of the law in
requiring the free, prior and informed consent of ICC/IP community and are therefore
prohibited:

a) By the applicant

1. Employment or use of force, threat, coercion, intimidation, at any degree or in


any manner, including those done by individuals or group of persons acting
for the applicant;

2. Bringing of firearm/s in the community during visits by the applicant or group


of persons acting for the applicant. When needed, armed security shall be
obtained from local police authorities or the AFP as requested by NCIP;

3. Bribery or promise of money, privilege, benefit or reward other than what is


provided for in the FPIC Action Plan;

4. Clandestine or surreptitious negotiations with IP individuals or members of the


community concerned done without the knowledge of the council of leaders or
elders;

5. Delivery to the community or to any of its members of donations of any kind;

b) By NCIP Officer or Employee

1. Acceptance or receiving of gifts or money from the applicant;

2. Consorting with the applicant or with any person connected to or mediating for
the latter;

3. Deliberate failure to act appropriately on complaints coming from the


community concerning prohibited acts committed by the applicant or any of its
representatives;

4. Gross negligence or deliberate omission to perform his duty required of him


by these guidelines in connection with his function and within his authority to
perform;

5. Acting on or performing his duty in consideration of future reward, promise of


money, privilege or benefit from the applicant;

c) By the IP Community or Member

1. Solicitation of any kind from the applicant;

2. Acceptance or receiving of gifts or money from the applicant;

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3. Consorting with the applicant or with any person connected to or mediating
for the latter;

4. Giving or promising to give his consent in consideration of future reward,


promise of money, privilege or benefit from the applicant other than what has
been provided for or explained by the applicant to the Council of Elders or
Leaders during the consultation meetings;

d) Other Prohibited Acts by GAs/LGUs/NGOs/ & other groups

Undue influence to the community, either to the members or their


representatives, exerted by representatives of non-government organizations or
representatives of government agencies or local government instrumentalities,
including barangay officials and their functionaries, and those made by other
entities or groups with religious affiliations, except those made during the
consultation proceedings or meetings conducted in accordance with the manner
and procedure as provided for in these guidelines;

Section 32. Sanctions. Administrative sanctions shall be imposed by the


Commission only after due notice and the parties are given the opportunity to be
heard, as follows:

a) For the Applicant


Commission of any of the prohibited acts by or attributable to the applicant, shall be
sufficient ground for the non-issuance of the certificate precondition by the NCIP, or if
already issued, a ground for its revocation. The Commission may proceed against
the applicant motu propio or upon complaint. In addition, serious violations shall be a
ground for disqualification for future applications for certificate precondition within
ancestral domain areas, without prejudice to filing of appropriate criminal action
against the offender under IPRA or the Revised Penal Code and other special laws.
The violation is considered grave when the commission of the prohibited act is
intentional and have resulted to loss of life or serious damage to property of an IP
member of the community, committed by means of, but not limited to, employment or
use force, threat, coercion, intimidation, violence, including those done by individuals
or group of persons acting for the applicant. The imposition of disqualification can be
lifted only upon petition by the individual or entity upon whom the disqualification was
imposed, stating the grounds why the disqualification should be lifted. No such
petition shall be entertained by the Commission without the favorable
recommendation of the IP community concerned whose rights were seriously
violated.

b) For the IP Community


The Commission shall formally call the attention of the Council of Elders/ leaders
concerned for him to be proceeded against in accordance with their own customary
laws. If the extent of the commission of the prohibited act would unjustly affect the
outcome of the community consent proceedings, the said proceedings shall be
suspended by the Commission until after the Council has shown to the Commission
that they have already addressed the prohibited act done by wrongdoer in
accordance with their customary laws.

c) For NCIP Officer or Employee


Prohibited acts committed by any officer or employee shall, upon finding of prima
facie evidence, immediately divest him of his authority to be part of the proceedings
upon order of the Chairperson of the Commission, and he/she will proceeded against
administratively in accordance with the Civil Service Rules and Regulations on
discipline, without prejudice to the filing of appropriate criminal charges;

d) For GAs/LGUs/ NGOs and other groups or individuals


Prohibited acts committed by any officer or employee of any GAs/LGUs or those
committed by members of NGOs and other groups or individuals shall be censured
applying the Commission’s subpoena and contempt powers.

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Section 33. Complaint To Censure the Person or Entity responsible for
Commission of Prohibited Acts; Order of Suspension. Complaint filed by any
aggrieved party in the proceedings for the censure of the person, group of persons or
entity alleging commission of any of the prohibited acts provided above, shall not
suspend the proceedings had, except those acts complained of, if proven, would
substantially affect the credibility and integrity of the outcome of the proceedings as
determined by the Commission. The complaint shall be filed before the NCIP
representative heading the field based investigation and authorized by these
guidelines to facilitate the proceedings. It is the duty of the NCIP representative
receiving the complaint to look into the sufficiency of the complaint by requiring the
complainant to substantiate his complaint by supplying all the data and information
needed for the appreciation of his complaint. His findings shall be endorsed to the
Commission en banc through the Regional Director. The Commission en banc, after
receipt of the endorsement shall immediately determine whether the act/s
complained about would substantially affect the credibility or integrity of the
proceedings had. If so, the Chairperson shall immediately order the suspension of
the proceedings still had with notice to all parties concerned of the reasons for the
suspension, and order the Regional Director to ask the complainant to formally file a
petition, in which case, the petition shall be resolved by the Commission in the
manner provided for in the succeeding paragraph. Otherwise, no suspension of the
proceedings shall be declared but the person or entity complained about shall be
asked to explain in writing within fifteen (15) days from receipt thereof why he should
not be censured for the prohibited acts committed.

Section 34. Petition for Nullification of Certificate of FPIC, its Proceeding or


Non-Issuance of Certification Precondition. The issuance of Certificate
Precondition by the NCIP in connection with any FPIC obtained or denied by the
community can be withheld only upon determination of the grounds raised in a
petition duly filed by any party contesting the issuance thereof. The petition for non-
issuance of the certificate precondition can be given due course only when the same
is raised on the ground of commission of any of the prohibited acts as declared
above or on ground of irregularity in the procedure as provided in these guidelines
that substantially affects the interest of the parties involved. The petition shall be filed
within the period of ten (10) days from the date of the decision of the community in
the assembly as provided in these guidelines and before the execution of the MOA
as required. The petition shall be resolved by the Commission within the period of
thirty (30) days from date of filing. The procedure for the resolution of the petition
shall be governed by the special rules that this Commission shall provide for. The
Commission may either declare the proceedings had as a nullity and determine the
appropriateness of holding another proceedings or declare the proceedings as
already done, and/or impose the administrative sanctions herein provided for the
commission of any of the prohibited acts.

Section 35. Waiver of Right To FPIC; Injunction for Acts Circumventing the
Purpose of FPIC Process. Programs, projects, plans, activities or any
development assistance or intervention that do not involve issuance of a license,
permit, agreement, authority or concession from any government agency, regulatory
body or local government units, solicited by the ICC/IP community themselves from
whatever sources and in any form, made through their council of elders/leaders, do
not require anymore compliance of the FPIC requirement as provided in these
guidelines, provided the solicitation is signed by the majority members of the
community. The ICC/IP community is deemed to have waived their right to FPIC by
that unilateral act of solicitation. However, in order to ensure that this exemption is
not utilized as a mode of circumventing the law requirement on FPIC, NCIP shall
validate the purpose of the solicitation by determining whether or not the solicitation
made bears the approval of the majority of the council members and determine
whether or not the same was made in accordance with the ICC/IP community’s
ADSDPP. If the solicitation is found to be unauthorized or if the solicitation is found to
be contrary to the community’s ADSDPP, NCIP shall require the Council of
Elders/Leaders to undergo the process of FPIC of the community members as
provided in these guidelines. Otherwise, the Commission shall exercise its injunction
powers upon written complaint of a majority of the members of the community to
enjoin the conduct or continued implementation of the program, project, plan or any

15
development assistance or intervention until the solicitors have complied with the
requirement of FPIC process in order to safeguard the rights of the other members of
the community and protect their interest. The complaint, which is required to be
signed by a majority of the members of the community, shall be filed before the
Regional Hearing Officer of the NCIP in the region. Its decision is appealable to
Commission en banc. The appeal shall be perfected within the period of ten (10)
days from receipt of the decision.

A. VI. FINAL PROVISIONS

Section 36. Applicability to Pending Applications. This guidelines shall apply to


all pending applications for issuance of Certification Precondition and Issuance of
Certificate of Free, prior and Informed Consent by the IP/ICC.

Section 37. Separability Clause. In case any clause, section, sentence, or


provision of this Administrative Order or any portion hereof is held or declared
unconstitutional or invalid by a competent Court, the other sections or portions hereof
which are not affected thereby shall continue to be in full force and effect.

Section 38. Repealing Clause. This Administrative Order repeals NCIP AO-03,
Seies of 1998. The provisions of other Circulars, Memoranda, Administrative
Orders, issued by this Commission, inconsistent herewith or contrary to the
provisions hereof are hereby repealed or modified accordingly.

Section 39. Effectivity. This Administrative Order shall take effect fifteen (15) days
from its registration in the Office of the National Administration Register, U.P. Law
Center, Diliman, Quezon City, Philippines.

APPROVED. FEBRUARY 19, 2002, AT QUEZON CITY, PHILIPPINES.

CORAZON M. ESPINO NORMA MAPANSA-GONOS


Commissioner Commissioner

LAGTUM A. PASAG EDTAMI P.MANSAYAGAN


Commissioner Commissioner

REUBEN D. A. LINGATING PABLO SANTOS


Commissioner Commissioner

EVELYN S. DUNUAN
Chairperson

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